Stress in the workplace has become an upfront health and safety concern. Christine Meechan of Bell Gully warns employers could also encounter stress-related refusals to work if proposed legislation goes ahead.

It seems obvious and - some might argue - perfectly reasonable that employees should have the right to flick the switch on machinery they believe to be dangerous. However, reports that the Minister of Labour, Margaret Wilson, is considering legislation that would give employees the power to refuse tasks they believe are unsafe under the Health and Safety in Employment Act 1992 ("the Act") could have wider implications.
Ms Wilson's proposals should be considered alongside the implications of two recent high-profile Court cases.

The two cases effectively ruled that workplace stress is officially a hazard as defined by the Health and Safety Act. From being a common by-product of a demanding work environment, stress has been elevated into an official workplace hazard. Employers beware.

If employees can refuse tasks they believe to be a hazard, will they be able to refuse tasks because they believe they may be too stressful?
Logically, this would appear to be the case. The implications are significant.

The message to employers is clear: handle stressful work situations in a responsible way, or risk being subjected to large compensation claims.
Workplace stress is a real phenomenon. We are working longer hours, and the pressures on the job seem to be growing. The challenge for responsible employers is to manage stress-related risk more carefully, particularly when the stress starts to impact on the physical and psychological safety of employees.

Nobody is suggesting that the stress felt in both Gilbert v Attorney General (2000) 5 NZELC 96,103 and Brickell v Attorney General (2000) 5 NZELC 96,077 was anything but very real, and had disastrous implications for both plaintiffs' physical and mental health.

Problems could arise when other - more litigious employees - notice the large compensation payouts awarded and believe they could exploit a situation. The problem is one of definition. It is easy to measure the effect of traditional workplace hazards - faulty machinery can cause physical injuries that are apparent and relatively easy to quantify.
But stress is a different matter. People react to stress in different ways. It is very subjective. Issues and pressures that one person may take in their stride, will cause another person real problems.

How do we determine the boundaries? If Janet becomes ill because of stress, and Jill, who does the same job and is subject to the same pressures, does not become ill (perhaps because of a higher resilience to stress), will Jill also be able to sue? And if not, why not? Will Jill be able to refuse to undertake assignments that have caused Janet stress, even if she has not suffered to date?

In Gilbert v Attorney General (2000) 5 NZELC 96,103 the plaintiff sued the Department of Corrections after retiring from his job as a probation officer due to ill health. Gilbert claimed the department's multiple breaches of the express and implied terms of his employment contract caused his ill health.

In particular, Gilbert claimed that an excessive workload and the department's failure to fill vacant probation officer positions contributed to his development of coronary artery disease, and subsequent physical collapse.

Judge Colgan ruled that Gilbert's claims were justified because as a responsible employer it was the department's duty to:
- not conduct itself in a manner calculated, or likely to destroy or damage, the relationship of trust and confidence between employer and employee;
- take reasonable care to avoid exposing Gilbert to unnecessary risk of injury to physical and psychological health;
- provide and maintain a safe system of work; and
- act as a good and considerate employer, especially in dealing with Gilbert's concerns about workplace health and safety.

The Court found the department breached these obligations and awarded Gilbert almost $800,000.

Particularly relevant to all employers is Colgan J's criticism of the department's health and safety policy that did not identify stress as a hazard. As a result, it failed to monitor employees' health in relation to the hazard - as required by the Act - in spite of clearly identified patterns of sick leave taken as a result of the stress.Although Gilbert's job was stressful by its nature, the department was ruled to have failed to minimise the hazards Gilbert was exposed to.

In Brickell v Attorney General (2000) 5 NZELC 96,077 the New Zealand Police Service was found liable for breaching common law and statutory duties.

Brickell was a video camera operator who, after years of exposure to horrific sights, developed post-traumatic stress disorder ("PTSD"). Although he received some counselling from the police, who recognised the stressful nature of the job, the Court ruled that the police service should have appreciated that Brickell was prone to developing PTSD and taken appropriate steps to combat this. Brickell was awarded $242,000 damages.

These two decisions highlight how important it is for employers to comply with the Act, and take care not to expose employees to risks of injury to physical and mental health. We already knew that. But we were less sure that "harm" under the Health and Safety in Employment Act 1992 included mental and emotional harm. Now that uncertainty has disappeared.

Employers, employees, and their respective advisers need to define what constitutes stress, given people's ability to cope with situations in different ways.

More importantly, employers will need to look carefully at the impact of Ms Wilson's proposed legislation on the day-to-day running of their business. They could encounter stress-related refusals to work. To avoid future liability, employers will need to take care to protect their staff from the harmful consequences of workplace stress. A good first step would be to look carefully at stress management policies. And soon - before it's too late.

This is a general summary only and should not be taken as a substitute for specific advice.

Christine Meechan is a partner in Bell Gully's Auckland office, specialising in employment litigation.

Web site: Bell Gully
Email: christine.meechan@bellgully.com

March 2001